A Potato Too Hot for Justice

January 06, 1994

When the independent counsel (formerly special prosecutor) law began to gasp its last in the summer of 1992, we said that "even without it special prosecutors who are relatively independent can be appointed by the attorney general" if Congress, the press, the public and others raise a clamor. Especially if there is suspicion or evidence of wrongdoing associated with the White House.

We assumed any president would have to yield to public opinion and allow his attorney general to appoint an independent special prosecutor, just as Richard Nixon did when the public expressed outrage over the Watergate scandal. (That occurred before there was a special prosecutor law.)

Now we are not so sure. President Clinton and Attorney General Janet Reno have shown no signs of yielding to as loud a clamor for a special prosecutor as has been heard in years. There is a clear consensus that the Justice Department cannot properly investigate the tangled story of the failed Madison Guaranty S&L of Arkansas and how it assisted investments by Bill and Hillary Clinton in the Whitewater Development deal. Vincent Foster, the deputy White House counsel from Little Rock, had the Clinton files in his office at the time of his suicide.

Probably no Justice Department could convince the public of its independence with such a lineup of possible targets. What a hot potato of a case! And this Justice Department is additionally compromised. The associate attorney general, Webster Hubbell, a former law partner of Mrs. Clinton's, was involved with Madison S&L.

The Justice Department already has displayed a lack of determination and independence that a case of this sort requires. Mr. Foster killed himself last July. Those Whitewater files were whisked away from his White House office to private attorneys' safes by White House Counsel Bernard Nussbaum. This was not announced, and not a subject of concern or investigation by Justice until five months later, when a newspaper publicized the handling of the Foster files.

Law, politics and S&Ls can get very complicated and messy, as Marylanders well remember. The Clintons may well be innocent of anything illegal. But there is a cloud over their heads -- and over the White House -- that only an independent investigation can dispel. Ms. Reno could pick any number of lawyers with reputations for integrity so outstanding that their independence and findings would be trusted, even if they reported directly to her.

She ought to do that immediately because there are statute of limitations concerns. If she won't, then the House of Representatives ought quickly to enact the new special counsel law the Senate passed last year. It imposes some welcome new restraints on court-appointed special counsels (a response to recent excesses) but forces the Justice Department and White House to accept them in cases like this -- and then keep their hands off.

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